Citation Nr: 21015802 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-38 901 DATE: March 18, 2021 ORDER Entitlement to burial transportation allowance is denied. FINDING OF FACT The Veteran died in January 2018 and was cremated; he was not buried at a national cemetery. CONCLUSION OF LAW The criteria for payment of burial transportation allowance have not been met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1709. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to January 1968. He died in January 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a April 2018 decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to burial transportation allowance The Appellant requests transportation allowance to transport the Veteran’s remains to Homer, Alaska for burial. See July 2018 VA Form 9, Appeal to Board of Veterans’ Appeals. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The Appellant’s claim for burial benefits has been pending since February 2018, i.e., after the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes, and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the new regulations, in effect at the time the claim was filed in February 2018. Here, the claim has been limited to transportation allowance. In her February 2018 application, the Appellant applied for nonservice-connected burial benefits and requested transportation allowance to transport the Veteran’s remains to Homer, Alaska. In an April 2018 notification letter, the RO informed the Appellant that she had been previously granted $2,000.00 for service-connected burial benefits (see January 2018 notification letter), and that plot or interment and transportation allowances were denied. In a May 2018 notice of disagreement, the Appellant requested transportation allowance. A statement of the case was issued adjudicating the issue of transportation allowance and the claim is now before the Board. As such, the claim is limited to a discussion of transportation allowance. Under 38 C.F.R. § 3.1709, VA will reimburse the costs of transportation only if a veteran was buried in a national cemetery. Here, the Veteran was cremated. There is no indication that his remains have been buried or interred. In her February 2018 application, the Appellant reported that she “will be taking cremated remains to Homer, Alaska.” In her substantive appeal to the Board, she reported the same. Notably, the Appellant has not submitted bills or receipts documenting that she personally incurred expenses related to the Veteran’s burial transportation, but instead, she is requesting assistance for anticipated transportation expenses. 38 C.F.R. § 3.1703(b)(iii)(2). Further, the Veteran’s death certificate states that his method of disposition was donation or for medical research and his place of disposition was Medcure, Inc. Because the Veteran was not buried in a national cemetery, reimbursement for transportation expenses is not available. See 38 C.F.R. § 3.1709. The Board acknowledges the Appellant’s contention that she is entitled to transportation allowance because the Veteran died at a non-VA facility with prior VA authorization and at VA expense for the purpose of examination, treatment or care. However, under 38 C.F.R. § 3.1709, before determining eligibility, a general requirement for reimbursement of transportation costs is that that the Veteran was buried in a national cemetery. Here, as discussed, the claim fails because the Appellant has not submitted evidence demonstrating that she personally incurred expenses related to the Veteran’s burial transportation, and, the Veteran was not buried in a national cemetery. See 38 C.F.R. §§ 3.1703, 3.1709. The Board acknowledges that the Veteran had honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. Here, there is no legal basis to award transportation allowance and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.